The Only Way To Tackle Mass Incarceration Is To Address The Issue Of Those Convicted Of Violent Offenses

Posted on September 19, 2016

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Violence And Redemption, TakePart's Big Issue Vol. 11

Opinion No. 1: Joshua Marquis, District Attorney.

District attorney, Astoria, Oregon; board member, National District Attorneys Association

One of the urban legends accepted by conservatives and liberals alike is the claim that mass incarceration is out of control, that America has become a virtual prison state filled with inmates serving time for nonviolent crimes. In the primary races for president, everyone from Carly Fiorina and Rand Paul to Bernie Sanders and Hillary Clinton decried the number of inmates in prison serving time for victimless drug offenses and harmless property crimes.

As the media are finally figuring out, our prisons are not filled with pot smokers.

The U.S. Justice Department found that only 3.6 percent of state inmates were sentenced for drug possession. When it came to marijuana, the number plummeted to three-tenths of 1 percent.

Yet the falsehood lives on because it’s politically convenient. Likewise the myth of nonviolent property crimes. Barely 25 percent of inmates are in prison for property crimes.

Prosecutors come face-to-face with the victims of these supposedly harmless crimes. If you think drug dealing is a victimless crime, you’ve never talked to parents trying to keep their children away from drug dealers. You’ve never seen someone whose life has been ruined by meth or heroin addiction. There’s nothing nonviolent about it.

And if you think breaking into someone’s home and destroying their sense of safety is no big deal, then you can probably afford private security.

The politically inconvenient fact is that the majority of inmates in our prisons are guilty of violent offenses. Do we now let them out so Republicans and Democrats who don’t live in high-crime neighborhoods can feel good about themselves?

We tried this in the 1970s, when the media was filled with optimistic stories of various social programs to rehabilitate violent criminals. The result? By the 1980s, crime was the No. 1 concern of many Americans.

Our prison population is not the result of overzealous prosecutors. Like it or not, our prisons are filled with people who earned their incarceration through their behavior.

What do we do about them? Require them to serve their sentences. Accountability and truth in sentencing are not political gimmicks. In the long run it will be cheaper. We will have fewer victims, and more criminals will focus on true change instead of trying to game the system.If you want to see what can happen if we let violent offenders out, consider what the Los Angeles Times found in 2006 when it looked at results of releasing jail inmates early because of jail closures: “Rearrests for violent and life-threatening crimes soared from 74 before the jail closures to more than 4,000.” What the Times story didn’t address, but prosecutors know, is that most victims of violent crime are poor and minority. These victims are invisible to even the most liberal politicians. This is the real reason for the bipartisan push to empty our prisons and save money. It is the poor whose safety will be sacrificed.

It has become a cliché that America incarcerates more people than any other nation. If America were a prison state, immigrants would not want to move here. They come here because of our freedoms and our justice system. In America, we attempt to control violent people who use their freedom to hurt others.

Opinion No. 2: Yasmin Cader, Public Defender.

Career public defender who has practiced in both the state and federal court systems

As a public defender and officer of the court, I firmly believe we need a criminal justice system that keeps all communities safe, prevents crime, and upholds our nation’s values of equal justice, accountability, and a chance to start over after missteps and misfortune.

Instead of focusing on prevention, however, we lock millions of people away for long periods, at great human and financial cost. This is done, in large part, through the systemic dehumanization of people labeled “violent offenders.”

For more than 20 years, I have defended indigent adults and children accused of committing state and federal crimes. Many of the people I have had the honor of defending have been convicted of “violent” crimes, which include any crime involving the use of force or threat of the use of force against a person or against property. This broad definition covers everything from attempted or actual threats, simple assault, burglary, robbery, theft/larceny, and arson to attempted or actual murder, rape, and terrorism.

The circumstances that lead people to my door are vast, complicated, and often tragic.

There is an implicit understanding from all working within the system, including police officers, prosecutors, and defenders, that the criminal court system has become the dumping ground for society’s failures to care for the most vulnerable.

In other words, by ignoring the reality that there is not a level playing field, our society has come to criminalize everything from homelessness to mental illness to poverty.

But perhaps more salient is that these crimes do not define the people who make these mistakes. Instead, my clients are far more interesting and complex human beings, with skills and potential and humanity. As Bryan Stevenson has so eloquently stated, “Each of us is more than the worst thing we’ve ever done.”

Fortunately, we know from experience around the country about alternatives that reduce crime, repair harm, and save resources. Indeed, some of the most innovative solutions involve people convicted of violent offenses. They include approaches like Common Justice in Brooklyn, New York, which advances solutions to violent crime that transform the lives of victims and foster racial equity without relying on incarceration. When incarceration does happen, pathways to rehabilitation like access to education, drug treatment, and proportionate sentences are in everyone’s interest.

I have so many clients who could have benefited from such reforms. I have defended countless young men and women born into poverty and despair, who have turned to drugs as an escape from an unfathomable reality. They have gone on to commit “violent crimes” not because they are morally broken or selfish or uncaring but because they are desperate and addicted and without realistic options for a better life. Intensive drug treatment, coupled with job training, mentoring, and educational assistance, would be a game changer.

And it is expensive. But certainly not as costly, in either monetary or moral terms, as simply locking people up for longer and longer periods of time. With this in mind, I call on voters, prosecutors, candidates, and elected officials to incorporate these approaches to prevent crime while upholding our values of redemption and equal justice under law.

Opinion No. 3: Glenn E. Martin, Reform Advocate.

Founder and president, JustLeadershipUSA; criminal justice advocate who spent six years in New York State prison

As the nation reels from the latest episode in a long and horrific saga of police brutality against black bodies, criminal justice reform is likely to remain a hot topic for the foreseeable future.

It’s a small but significant step—one that deserves a tip of the hat, if not a chorus of slow claps. After all, the path toward building—or constructing anew—a system of greater justice and humanity is grueling and clumsy work. Along the way, it’s important that we acknowledge and celebrate the small triumphs our opponents would have us believe don’t exist. A flash of excitement is a totally reasonable response.

But if we peer through the fog of self-congratulation, we’ll see that the debate itself remains underwhelming and ultimately inadequate to the task. That is, we’ve begun to celebrate our moral courage before we’ve grasped the depths of our moral failures.

Take any official or popular pundit of your choice. Chances are that when speaking about criminal justice reform, they launch a barrage of statistics meant to demonstrate that a system of such economic and moral absurdity has no place in the world’s greatest democracy. Fair enough. But with remarkable consistency, they underestimate—or willfully obscure—the herculean task that bringing our sprawling criminal justice system to heel actually is.

The greatest example of this habit is the fuzzy nostalgia that clings to our collective memory of the pre-Nixon years. In the political imagination, this era was one of restrained, judicious correctional policy. If only we could get back to the otherwise sensible tradition that Nixon's drug war bulldozed, we’d be in top form again. This is comforting, but god-awful history.

Even before the drug war, the United States was still home to a black-white incarceration ratio of 5:1. There is no sanity to be found in that era, one in which the United States was still an international leader in racist correctional policy. So to be clear:

We could release everyone locked up under the country’s ill-fated drug war and still have a system of spectacular cruelty and racial imbalance.

The lion’s share of the incarcerated population is housed at the state level for non­–drug related offenses. Any effort to meaningfully reduce the footprint of America’s sprawling carceral system must include the release of some significant portion of those locked up for violent offenses.

Add to this that the nation’s spiraling incarceration rate has no meaningful connection to crime reduction, and you’re left with a simple, even if difficult, dilemma. We either get serious about rehabilitating and releasing those with violent histories or we forfeit any claim as a nation committed to correcting its moral failings. We either address the social devastation that predictably leads to antisocial behavior or we grant eternal life to a system that ruthlessly mocks our happy talk about justice and equality. A choice for the second of either of these is a choice for the continued punishment of people we’ve punished since time immemorial: the darkest and poorest among us.

Opinion No. 4: Robert Blecker, Retribution Advocate.

Criminal law professor, New York Law School; author, The Death of Punishment

Let the punishment fit the crime. We mouth it, pay homage to it as a central pillar of justice. But do we really mean it? How could we when the administration of our prison system mocks the credo. After thousands of hours inside prisons over decades, I’ve seen the perversion:

Those who commit the worst crimes and deserve to suffer most often live the most privileged lifestyles, while relatively trivial, nonviolent criminals are abused and preyed upon. The worse crime deserves harsher punishment.

What makes a crime worse? We retributivists insist that the culpable mental state—the vicious attitude of the worst of our violent criminals—makes them deserve greater punishment, especially when combined with the greater harms they cause. All other things equal, intentional murder deserves greater punishment than intentional assault: Death is worse than injury. Intentional murder also deserves greater punishment than negligent homicide: Intent or depraved indifference and recklessness, all other things equal, also warrants more punishment than criminal negligence.

Once we settle how to grade violent crime, we should focus on grading punishment as well. What makes punishment worse? Here, Western culture made a wrong turn or at least an arbitrary turn with prison itself. We thought we could break freedom into discrete units and match lost liberty to the seriousness of the crime. But punishment amounts to more than some abstract number; it’s a daily experience. How long not only asks the question of duration but also of intensity.

Any true retributivist committed more to making the punishment fit the crime should largely eliminate prison sentences for nonviolent drug offenders. We must do more, however, and also distinguish between violent criminals. We must separate the less bad from the worst of the worst. Those real distinctions among violent criminals should make real differences in their day-to-day life inside prison. In short, those whose violent behavior was aberrational, those who committed serious crimes violently but less viciously, should experience a very different lifestyle, day to day, while serving their sentence.

“What a man did out there is no concern of mine,” corrections officers from commissioners to rookie guards have declared to me, almost with one voice. “I care only how he behaves inside.” That attitude, thoroughly understandable and fundamentally perverse, mocks justice and the idea of appropriate, proportional punishment. A prisoner should deserve the day-to-day life inside prison. That experience should fit the crime.

In sum, make rehabilitation real for the vast majority of violent criminals who we may someday release. But for that very small minority of vicious, violent, predatory offenders—rapist-murderers, racist killers, terrorists, child killers, hired killers—life inside prison should be extremely unpleasant, all day, every day, for the rest of their lives.

Only then will the punishment more nearly fit the crime.

Opinion No. 5: Danielle Sered, Restorative Justice Advocate

Director, Common Justice, a program that develops solutions to violence that meets the needs of victims and fosters racial equality without relying on incarceration

I would like to make an arguably unconventional argument about whose lives are at stake in our tackling the question of violence and ending mass incarceration. It is my belief that it is crime survivors who most need us to do so.

To put it most simply: Survivors need us to do what works. And prison doesn’t work.

Most fundamentally, people who have survived and are at risk of surviving violence need us to respond to harm in a way that increases safety. At their most basic, prisons nurture shame, isolation, exposure to violence, and reduced ability to meet one’s economic needs—all of which are known to be drivers of violence. And almost all of the people who experience incarceration—a full 97 percent—come home. We should not be surprised, then, when prisons do not deliver safety to the degree survivors and communities need and deserve. And survivors know it. They have paid the price of prison’s failure with their own pain.

So what do survivors want? In our work, we have found that the vast majority, when asked, say versions of the same thing: They want answers. They want their voices heard. They want a sense of control. They want the person held meaningfully accountable. And they don’t want the person to hurt them or anyone else ever again. But when we ask them what form that accountability should take, the answer from many, though certainly not all, survivors is surprising. As we find over and over again in our work around the country, and as a recent national poll conducted by the Alliance for Safety and Justice made powerfully clear, they say they want more alternatives to prison. And they want processes like restorative justice that bring together the people most impacted by harm to decide how to address it.

When victims have the option, they choose this path, even for violent crime. At Common Justice, which operates a restorative justice–based alternative to prison and victim service program for violent felonies in Brooklyn, New York, a full 90 percent of survivors who have been given the choice between seeing the person who harmed them incarcerated or seeing them in Common Justice have chosen Common Justice. While some survivors certainly choose Common Justice out of compassion, most choose it out of practical self-interest: They believe Common Justice is more likely to meet their short-and long-term needs for safety and justice.

The substantial support among survivors for these processes is not just about the promise of restorative justice, though. It is also about the failure of incarceration to meet survivors’ needs. While incarceration certainly provides some people with a sense of safety from the person who harmed them for the duration of that person’s sentence and/or satisfies a desire to see someone punished for wrongdoing, it does not in itself deliver the healing that those harmed deserve. Many victims find that the incarceration of the person who hurt them makes them feel less safe rather than safer—both because they believe people often return from prison more, rather than less, likely to commit violence and because the incarceration of the person who hurt them does not change, and can sometimes even exacerbate, the structural and interpersonal conditions in their neighborhoods that made violence likely in the first place.

When we listen to survivors and reckon with the actual impact incarceration does and does not have on their lives, it pushes us to become more honest about the profound limitations of our current approach. When we reckon with that reality, we will address mass incarceration not just as a problem for those who are incarcerated but as an unacceptable condition for survivors of crime.